Author: Brandon Bartels

6

On Gay Marriage, Times Are Changin’

As gay marriage continues to be a controversial issue in political and legal discourse, a quite drastic trend in public opinion is occurring right before our eyes:  Public support for gay marriage has risen significantly over the past two decades in ways you may not have noticed. Columbia University political scientists Andrew Gelman (also a statistician), Jeffrey Lax, and Justin Phillips have published a compelling report in the New York Times that documents and discusses these trends. Be sure to look at the associated graphics. The article is related to Lax and Phillips’ research, published in the American Political Science Review, on public support and policy responsiveness on gay rights issues at the state level. Here is a summary of the primary findings from the NYT article:

1.  For the first time, a national public opinion poll (by CNN) finds majority support (narrowly) for gay marriage; on average, polls show roughly 45% support.

2.  In 1996, just 25% of the American public supported gay marriage.

3.  “The more important turning points in public opinion, however, may be occurring at the state level, especially if states continue to control who can get married.”

-  In 2004, no state showed majority support for gay marriage.
–  By 2008, three states showed majority support.
–  Today, 17 states show majority support for gay marriage.
–  “Support for same-sex marriage has increased in all states, even in relatively conservative places like Wyoming and Kentucky.”

Gelman, Lax, and Phillips forecast that these trends will continue in the future, as the under-30 population shows majority support for gay marriage across all states. “As new voters come of age, and as their older counterparts exit the voting pool, it’s likely that support will increase, pushing more states over the halfway mark.”

Of course, the times are changing not only in public opinion, but in public and legal policy as well. 5 states now allow gay marriage (IA, CT, MA, NH, and VT). While several states currently have bans on gay marriage, federal district court Judge Vaughn Walker’s declaration of CA’s Prop 8 as unconstitutional means that the courts — ultimately, the U.S. Supreme Court — will decide whether those bans will stand or not. And a federal district court judge in MA has struck down parts of the federal Defense of Marriage Act (DOMA).

All roads in this debate lead to a fundamental question:  What will the Supreme Court do? The Prop 8 case is on a sure path to the Supreme Court. And the Massachusetts District Court decision on DOMA may also end up at the Court (see this post by CoOp contributor Glenn Cohen). While bloggers and legal commentators continue to speculate on what the Supreme Court will do, I actually have little doubt that in a few years, the Supreme Court will strike down Prop 8 (and by implication, other state bans), declare a constitutional right to gay marriage (via the 14th Amendment’s due process and equal protection clauses), and rule that states cannot prevent citizens from getting married on the basis of sexual orientation. First, it is not at all a stretch to think that Justice Kennedy — who will likely write the 5 person majority opinion — will vote as such. His opinion in Lawrence paves the way for such a position (as Justice Scalia emphasized in his dissent), and I think he and the Court majority will apply the logic in the Loving v. VA precedent (prohibiting state bans on interracial marriage) to sexual orientation. That is, marriage is a fundamental right, and, as Judge Walker emphasized, no matter what legal standard you use (rational basis or strict scrutiny), there is no legitimate basis for preventing that right on the basis of sexual orientation. Also, I do not think that Ted Olson would take on a case of this magnitude — particularly one that goes against his usual ideological proclivities (though see his Newsweek article) — unless he knew there was a high likelihood of a payoff awaiting him at the end.

Sometimes it is difficult to assess social and policy change while you’re in the middle of it.  As Gelman, Lax, and Phillips have documented, momentum has been building for gay marriage in the public for a decade, and it is bound to continue building. Policy in the states has begun to follow suit. And ultimately, it is completely conceivable to think that the Supreme Court will complete the circle and declare that marriage is a fundamental constitutional right that cannot be abridged by states on the basis of sexual orientation.

5

Is the Contemporary Supreme Court Really That Conservative?

Adam Liptak’s extensive analysis in the New York Times a few weeks ago presents some compelling empirical trends from the Roberts Court era. Liptak presents some bold conclusions, arguing that the Roberts Court of the 2009 term “became the most conservative one in living memory.”

Some research I am conducting (with my co-author, Christopher Johnston) on public perceptions of the Supreme Court asks, among other things, whether the contemporary Supreme Court is really all that conservative, either objectively (looking at the Court’s raw outputs) or from the American public’s point of view. It has become a sort of kneejerk reaction for the media, legal commentators, and academics to label the contemporary Court as “conservative.” This assumption can partly be attributed to the fact that Republican presidents have dominated Supreme Court appointments over the past 40 years or so. Indeed, since President Johnson put Thurgood Marshall on the Court in 1967 (Johnson’s last appointment), 12 out of the last 16 justices have been appointed by Republican presidents. Justices Ginsburg, Breyer, Sotomayor, and Kagan are the only Democratically appointed justices in this era.

But in recent times, of course, conservatives have not dominated or dictated decision outcomes on the Court, with O’Connor and Kennedy — conservative leaning swing justices — joining the liberal justices on some high-profile decisions. Thinking about some of the Court’s major decisions in the 1990s and 2000s, many high profile and legally significant liberal decisions emerged. Granted, there have also been several high profile conservative decisions, but one would not necessarily expect a supposedly conservative Court to produce as many significant liberal decisions as we have seen. To get an empirical sense of what I am talking about, Figure 1 below displays two graphs. The top graph, Figure 1a, presents the annual percentage of liberal decisions produced by the Court from the 1953-2008 terms of the Court for all cases decided by the Court. The bottom graph, Figure 1b, displays Supreme Court liberalism in highly salient Supreme Court cases that receive ample attention from media and elite discourse. To measure salience, we use Epstein and Segal’s (2000)1 measure for whether or not a decision was covered on the front page of the New York Times the day after the ruling. Data on the Court’s decisions come from the Supreme Court Database, where decisions are coded as liberal or conservative following the standard coding scheme.2 The smoothed solid line in each graph is a non-parametric line of best of fit (lowess, or locally weighted smoothing), which allows one to visualize the overall trends of the Court’s policymaking.

Read More

2

Justice Kagan

In the aftermath of Justice Elena Kagan’s successful confirmation (by a 63-37 vote), have we learned anything new about the Supreme Court appointment process? I don’t think so. The process continues to be highly political, with a nominee’s ideological views and “judicial philosophy” taking center stage. Kagan’s qualifications — or lack thereof, according to some — became an issue. While everyone agrees that she is very intelligent, her lack of prior judicial experience was a minor problem for her nomination, leading even moderate Republican Senator Scott Brown to vote against her. Kagan will be the first justice since Justice Rehnquist (when he became Associate Justice in 1972) not to have had prior experience as a judge.

An interesting counterfactual:  Let’s say Kagan were nominated to replace one of the conservative justices on the Court instead of Justice Stevens. In such a scenario, Kagan would have shifted the ideological balance of power to the left, thus making it a more significant, critical nomination. Would Republicans have filibustered her nomination under those conditions? It will be very interesting to see how such a confirmation process unfolds in the future if such conditions are present. With conservative justices hesitant to retire under an Obama administration, it would take death or a serious illness (that would force retirement) for Obama to change the ideological balance of the Court (sorry to sound morbid). Under these conditions, Obama might choose someone he knows could withstand rigorous Senate scrutiny given the high-stakes nature of the appointment. He would also have to consider the partisan and ideological makeup of the Senate.

The two most recent instances where a justice retired while a president of opposite ideological stripes held office were Justices Brennan and Marshall. Both retired for health reasons; President George H.W. Bush appointed their replacements. Marshall was replaced by Thomas, and we all know how that confirmation process turned out; the vote was 52-48. Brennan was replaced by Souter, though that process was not contentious. The vote was 90-9.

If President Obama does happen to get the opportunity to change the ideological balance of the Court (i.e., replace a conservative justice with a more liberal one), we can surely count on a highly dramatic, contentious appointment process far eclipsing the Kagan appointment process.

0

Lindsey Graham and the Advice and Consent Clause

As the full Senate takes up the Kagan nomination today, which will almost certainly lead to a successful confirmation, I am still struck by Senator Lindsey Graham’s (R-SC) comments before casting his vote in the Judiciary Committee, which reported the nomination to the floor by a 13-6 vote. Sen. Graham was the lone Republican yes vote, a redux of the Sotomayor nomination. Given the political pressure from conservative groups and his Republican colleagues to vote no, as well as Graham already being on shaky ground with conservatives and Tea Party adherents, his vote should certainly be considered a principled and courageous act. It is one, among others, that could pose electoral problems for Graham down the road.

Graham’s reasoning for voting yes on Kagan was compelling, and, somewhat ironically, it rests on his constitutional interpretation of the “advice and consent” clause of Article II (the president “shall nominate, and by and with the Advice and Consent of the Senate,…Judges of the supreme court….”). What is the standard by which Supreme Court nominees are to be assessed by the Senate? To what extent does “advice and consent” entail that senators scrutinize a nominee’s ideological preferences or judicial philosophy? According to Graham:

The Constitution, in my view, puts a requirement on me as a senator to not replace my judgment for [the president’s], not to think of the hundred reasons I would pick someone differently or pick a fight with Ms. Kagan. It puts upon me a standard that stood the test of time:  Is the person qualified, is it a person of good character, are they someone that understands the difference between being a judge and a politician? And quite frankly, I think she’s passed all those tests.

Graham is essentially calling for a restoration of a standard from a bygone era. That is, there should be a presumption that a nominee will be confirmed. As long as the person is qualified and has a solid understanding of the law and the issues that come before the Court, that person should be confirmed. Rigorous scrutiny of a nominee’s ideological views and judicial philosophy is outside the realm of “advice and consent,” according to Graham. Elections have consequences, and President Obama is entitled to choose a nominee who agrees with him on various legal issues. It would take some “smoking gun” for the Senate to reject the president’s nomination. What exactly would constitute such a smoking gun is a question that is worthy of considerable debate. The “extraordinary circumstances” standard was suggested by the “Gang of 14″ a few years back, and some senators still invoke that standard.

Of course, the Constitution is not at all specific about what exactly the advice and consent clause means or entails. Sen. Graham is basing his interpretation on how numerous nominations were conducted from the founding until well into the 20th century. Today, many senators obviously disagree with Graham’s standard and believe that ideology and judicial philosophy are fair game. Many who vote “no” cite those factors as justification for their votes.

Graham’s exercise in constitutional interpretation is ironic. Senators are prone to preach at judicial hearings that judges should simply do what the Constitution says. But, of course, everyone knows that the Constitution is incredibly vague and contains considerable gray area; judges have to use their judgment to fill in those holes. Here, you have a senator grappling with the gray areas of the Constitution in trying to ascertain the meaning of the advice and consent clause of the Constitution. It is not clear what this clause requires as to how and on what bases senators should scrutinize a nominee. Graham takes a highly restraintist view, while nearly all of his colleagues take a more activist view, at least in Graham’s world. While “judicial activism” is among senators’ favorite buzzwords when it comes to judicial nominations, I doubt Sen. Graham will call out his colleagues as activists on this topic.

0

BRIGHT IDEAS: Mike Sacks on Supreme Court Reporting from the Front Lines

Sometime before commencement of the Supreme Court’s 2009 term, Mike Sacks, a third-year law student at Georgetown University, had an idea.  Taking advantage of his close living proximity to the Court, Mike would attempt to be the first one in line for all of the major oral arguments for the Court’s term. In addition, he would interview people in line about why they were there and their impressions of the Court and the case to be argued. And, most importantly, he would start a blog to report on his experiences. Mike has been engaging in legal journalism from a unique vantage point: from the front lines — or, from the “front of the line” — of the Supreme Court. Mike’s bright idea has resulted in a successful Supreme Court blog, First One @ One First.  [Recall Mike’s mission to be the “first one” in line at “One First” Street NE (the Court’s address).] Click HERE for the blog’s mission statement. Mike’s experiences and blogging have been featured in the New York Times (see HERE as well), National Public Radio, the ABA Journal, the Washington Post’s WhoRunsGov/PostPolitics, The Atlantic, Slate, Volokh Conspiracy, Above the Law, and other outlets.

Mike’s blogging has also launched the beginning of what is likely to be a successful career in legal journalism. In fact, Mike wrote the cover story for last week’s issue of the Christian Science Monitor.  He has also been blogging at some premier legal blogs. Below, Mike answers some of my questions about his reporting experiences, his impressions of the Court’s term, and his perspective on the Supreme Court in general.

1.  Could you talk briefly about how and why you came up with this idea of what might be called “legal journalism from the front lines?”

Because Concurring Opinions is more of an academic blog, I’ll start with F1@1F’s intellectual underpinnings.  As the Citizens United rehearing approached last September, I noticed that the Roberts Court’s dockets and decisions from OT06 through OT08 appeared to track the surrounding political climate.  Once so boldly conservative on all the hot buttons when operating under the cover of Republican-controlled Legislative and Executive branches, the Roberts Court–now operating alongside Democratic political branches–appeared to have shaped an exceedingly modest OT09 docket so to have enough political capital to spend on Citizens United without irreparably damaging the Court’s institutional legitimacy.

I wanted to test my hypothesis that the Roberts Court was not only sensitive, but also responsive, to its surrounding political climate. Of course, I could have done this by reading transcripts of oral argument and digging through the decisions once released.  But I lived four blocks from the Court and had already had a blast camping out for Citizens United / Sotomayor’s first day.  When I noticed I had no morning classes for the Spring Term on the Court’s argument days, I really decided to make this an in-the-flesh project.

But I wouldn’t have followed through so thoroughly had I not had vocational motivations as well.  I entered law school very interested in constitutional law, politics, and media.  After my first year, I interned for Nina Totenberg at NPR.  That was the summer of Heller and Boumediene.  I so enjoyed that experience that I took a semester off to work at ABC News’s Law & Justice Unit in New York, where I covered the legal aspects of the 2008 Presidential Election and the Wall Street meltdown.  Once back at school and on the job market, I thought there was no better way to make myself attractive to both legal and media employers than to build a body of work on the Supreme Court beat.

Nevertheless, just another person writing about the Court out in the ether wouldn’t have been too compelling.  But getting out in line at disturbingly early hours and telling the tales of those crazy enough to join me – now that’s something no one had ever done. Indeed, if the Court is responsive to the political climate, and if public opinion on any given case is the “weather” that shapes our broader climate, then I figured those who cared enough to get out in line on bitterly cold mornings well before the sun came up would make a very good representative sample for the people who shape public opinion.  By asking these folk, “why are you here?”, I would be committing interesting journalism while also informing my research about the Roberts Court.

2.   What unique insights have your experiences over the past term given you about the Supreme Court and the justices?

Chief Justice Roberts is a superb political strategist.  He’s steering a right-of-center Court through a left-of-center government and knows which storms his ship can handle and which it cannot.  I wrote prospectively about this back in December, Jeff Rosen of The New Republic wrote about it in February, and Adam Liptak of the New York Times wrote about it just the other day.

What we’ve seen this year is the birth of John Roberts’ Court.  It will always, to a degree, remain the Anthony Kennedy Court as well, until he leaves the bench or one of the conservatives is replaced by a liberal.  But Roberts took control this year in the Court’s decisionmaking that we haven’t yet seen.  The next interesting thing to look out for is what issues beyond Miranda, guns, arbitration, and campaign finance the Chief believes are ripe for conservative gains as the Congress and the Presidency remain in Democratic hands.
Read More

1

Confirmation Hearings: If I Were a Senator…

On Monday, I suggested that Supreme Court confirmation hearings would be more productive if senators were disabused of two misconceptions:  (1) that judging at the Supreme Court level is mechanistic and computer-like, and (2) that the Court should not and does not make policy. CoOp contributor Dave Hoffman noted:

I’d be surprised if anything you wrote were to surprise them. The reason that most commentators find the hearings to be a charade isn’t because the senators have one view of the constitution (shared by the public) and legal “elites” have another. It’s that everyone involved in the process knows the game but has to play anyway.

For the most part, I agree with Dave. And at the beginning of my post, I noted that these misconceptions are “either sincerely held beliefs, beliefs based on ignorance, disingenuous devices for hammering the nominee and scoring political points,” or a combination of the three. Dave’s view comes closest to the third — political posturing, “playing the game” in a disingenuous fashion. I will say this: I sometimes get the sense that some senators sincerely believe in the depictions (what I would call misconceptions) that they advance. One would have to get in senators’ heads to know their true motivations for advancing these misconceptions. But the bottom line is that they do advance them consistently.

Dave Hoffman also asked,  “What, in your view, is the proper role for the hearings?” This is a great question. The fundamental dilemma senators face is getting nominees to talk substantively about law and judging without having them discuss issues that might come before the Court in the future. If I were a senator, I would want to ask about the following issues. There are certainly others, but these are at the top of my head:

1.  Factual knowledge about legal development and case law:  One could certainly tap the nominee’s knowledge of existing case law and historical legal development in certain areas in order to get a nominee at least talking about more specific issues of law and legal doctrine, e.g., development of legal doctrine in free speech and other civil liberties issues, changes in commerce clause jurisprudence, modes of statutory interpretation, and so forth. Via this exercise, senators could get some sense of how the nominee thinks about legal issues and what s/he thinks are the most important features of case law over time.

2.  Legal reasoning:  How do you deal with gray area in the law? What do you do when “the law” does not provide a clear answer in a particular case? Since the Supreme Court takes “hard” cases with considerable gray area, there are often legitimate legal justifications for both sides of the case. What do you do in these situations?

3.  Overturning precedent:  Under what conditions does and/or should the Supreme Court overturn precedent? What are the relevant considerations at play? There was some good discussion of this yesterday during Senator Coburn’s questioning.

4.  Intricacies of legal doctrine and precedent:  In the area of constitutional law with respect to civil liberties and civil rights, I would want the nominee to talk about the strict scrutiny, intermediate scrutiny, and rational basis standards in a factual sense first. Then, more specific questions on application. How do justices know which standard to apply to different classifications or case facts? Under what conditions (if any) can strict scrutiny be overcome? Define a “compelling governmental interest.” How does one implement the intermediate scrutiny standard to a set of facts? Regarding rational basis, what passes for a “reasonable” or “legitimate” governmental interest? Aside from constitutional law, senators could ask the nominee about theories of statutory interpretation. By what methods do justices ascertain the meaning of a statute? What considerations are at play in statutory interpretation?

5.  Certworthiness:  What considerations do justices face when deciding whether to grant cert to a case? This was discussed quite well yesterday, and Kagan gave some good answers re: conflict in the circuits, when a circuit court strikes down a law as unconstitutional, etc. What other factors would the nominee look to in order to decide which are the most important cases?

6.  Oral arguments:  What information would you want from lawyers at oral arguments? What is the ultimate informational value of oral arguments?

7.  Opinion writing:  What would be your style of opinion writing? How would you approach writing a majority opinion? What is the primary function of an opinion (re: a guide for lower courts)?

8.  Ideology and discretion:  Since the cases that come before the Court contain a great deal of gray area, a justice has significant discretion to use his/her judgment to decide a case. How do/should justices use that discretion? Why do justices disagree on legal interpretation? What are the foundations of that disagreement? Why do disagreements about legal issues on the Court typically split along ideological lines? Does this mean that policy preferences are influential in decision making? Of course, nominees will never say that their ideological or policy preferences influence their decisions (as was apparent from yesterday’s questioning). These questions would be designed to get the nominee to talk about ideology in a more indirect way.

I realize that even these questions, though they do not ask the nominee to comment on cases that may appear before the Court in the future, may not elicit the type of substantive discussion that I think should be the goal of the hearings. But this would be a start, I think. And actually, in watching the hearings yesterday, I thought there was a moderate degree of substantive back-and-forth between senators and Kagan. I think these hearings have been much more informative than the Sotomayor hearings.

Photo credits:  Luke Sharrett/The New York Times

2

Confirmation Hearings: If I Could Disabuse Senators of Two Things…

As the Senate Judiciary Committee begins confirmation hearings today for Supreme Court nominee Elena Kagan, be prepared for many shallow questions from senators and many empty answers from Elena Kagan. These hearings often turn into “vapid and hollow charades” (to quote Kagan) because senators’ questions are based on misconceptions of judging at the Supreme Court. These misconceptions are either sincerely held beliefs, beliefs based on ignorance, or disingenuous devices for hammering the nominee and scoring political points. It could also be a mixture of the three. Confirmation hearings would be much more productive if senators were disabused of two misconceptions.

1.  Mechanistic judging:  We will hear senator after senator say something to effect of, “We need impartial justices on the Court who will follow the law as it is written and respect precedent. We need strict constructionists, not judicial activists on the Court.” The computer-like, mechanical jurisprudence view of judging — where judges simply apply “the law” to the facts of a given case like a technician — is a straw man, plain and simple, particularly at the Supreme Court level. It is a view of judging that cannot be taken seriously. The Supreme Court takes cases that contain a high degree of legal ambiguity. The justices deal in the gray areas of the law, not the black and white ones. Thus, simply applying “the law” in a straightforward fashion is not possible or realistic at the Supreme Court level.  “The law” in a given case — precedent and legal doctrine, constitutional provisions, statutory provisions — is never completely evident and rarely provides a clearly-defined answer to the question in a case. Justices, then, have considerable discretion to use their own judgment to render a legal rationale and interpretation applied to the facts of the case. And guess what, senators? Justices frequently disagree with each other on how certain provisions should be interpreted. Justices also have policy preferences that color their judgment to an extent — they are humans, not computers. This does not mean that law does not matter at all. But since the cases the Court hears contain considerable gray area, which naturally gives justices considerable discretion, they will undoubtedly rely on extra-legal considerations, in addition to legal considerations, to render a decision.

2.  The Supreme Court makes policy — get over it! We will also hear senators say something to effect of, “The role of the Supreme Court is to interpret the law, not to make law. Congress makes law and policy; the Supreme Court is not a policymaking institution.” At a constitutional organizational level, this is correct — Congress makes law, the executive enforces the law, and the judiciary interprets the law. But in practice, there is absolutely no doubt that the Supreme Court makes policy. When the Supreme Court strikes down a law as unconstitutional, that is a policy, plain and simple. It is a policy directive with which the other branches, the states, and the American public must comply since it is the law of the land. Judicial review is a vehicle for policymaking, and I doubt any living human being will call for the reversal of Marbury v. Madison. When the Court renders an interpretation of a law via statutory interpretation, that is policymaking. Moreover, as the head of the federal judicial hierarchy, the Supreme Court is tasked with making legal policy for the lower courts in order to guide their decisions. So at this level, the Supreme Court makes policy — there is no getting around it.

To be fair, senators sometimes mean something else when they attack the Court for its policymaking role. They are sometimes referring to justices using the Constitution to “create” rights and liberties that are not clearly enumerated in the text of the Constitution (substantive due process), e.g., the right to privacy, abortion, and so forth. This has some overlap with the first topic above related to charges of judicial activism. Substantive due process — what rights are covered under the 14th Amendment’s “liberty” clause? — is a legitimate topic that is worthy of rigorous questioning (though nominees usually avoid this question). But it should not be lumped in with the notion that the Court inevitably makes policy in the manner that I have described above.

The bottom line: Senators need to realize that justices deal with complicated legal questions that do not contain clearly evident answers. There is often a legitimate legal rationale supporting both sides of a case, which is precisely why the Supreme Court is deciding the case. The Court is tasked with making legal policy in some form or another. The justices have to decide the case, and they have to provide a legal rationale for the given case that will serve as legal guidance for the lower courts and for future Supreme Court cases. It is extremely counterproductive for senators to continue propagating misconceptions about the Supreme Court in Senate confirmation hearings. If they could move beyond these misconceptions, perhaps the words “vapid,” “hollow,” and “charade” could be removed as descriptors of the process.

3

Republicans Come Out of Hiding

After weeks of virtual silence, Republicans are stepping up their public attacks on Supreme Court nominee Elena Kagan. And they are using some rather strange arguments. The new line of attack is that Kagan is incapable of being impartial because of her political/policy role in the Clinton administration. Senate Minority Leader Mitch McConnell, who on Sunday would not rule out a filibuster of Kagan, is leading the charge with a new narrative that Kagan is more of a “political operative” than a lawyerly type. McConnell cites memos that Kagan wrote about campaign finance reform while she worked for Clinton. Quoting McConnell from the Senate floor:

In other words, these memos and notes reveal a woman whose approach to the law was as a political advocate — the very opposite of what the American people expect in a judge.

Sen. McConnell’s logic would cast nearly every justice who ever served on the Court as an “advocate” seemingly incapable of being impartial. What Sen. McConnell — and frankly all senators, both Republican and Democrat — apparently needs to remember is that lawyers are supposed to be zealous advocates for their clients’ interests. While Kagan’s role in the Clinton White House was as a policy adviser and not as a lawyer, the role she played parallels the manner in which a lawyer represents a client. As Obama spokesman Ben LaBolt notes, Kagan simply gave Clinton advice “that reflected the president’s well-established views.” She worked to advance Pres. Clinton’s agenda, just like a lawyer works to advance his/her client’s interests. Most Supreme Court justices were lawyers who represented clients before they entered the judging profession.  They worked to advance their clients’ interests.

It is clear that Sen. McConnell and fellow Republicans are trying to dig up new criticisms of Kagan in the run-up to the confirmation hearings. But this line of attack is weak and would cast doubt on all of the sitting justices. Chief Justice Roberts and Justice Scalia worked to advance the interests of Republican presidents before they were judges. Justice Breyer was special counsel to the Senate Judiciary Committee, where he worked with then Chairman Sen. Ted Kennedy. And Justice Ginsburg worked to advance women’s rights as an ACLU litigator. All were simply doing their jobs — being advocates for their clients/bosses. Beyond these examples, several former justices, of course, served in explicitly political capacities, e.g., Justice O’Connor was a state legislator, some justices were senators prior to service on the Court, and Chief Justice Taft was president before joining the Court.

Photo credits:  Stephen Crowley/The New York Times

2

McConnell Doesn’t Rule Out a Kagan Filibuster

On Fox News Sunday, Senate Minority Leader Mitch McConnell did not rule out the possibility of a filibuster of Elena Kagan’s Supreme Court nomination (see HERE for a summary).  Quoting Sen. McConnell:

I have never filibustered a Supreme Court nominee. It is possible, but entirely too early to know whether that would be appropriate….  The option is open under the Senate procedures, but to predict that that might happen at this stage of the game is entirely premature.

While Sen. McConnell, then, seems at least open to the possibility of a Republican-led filibuster, recall that at least three of his Republican colleagues — Sens. Scott Brown, Susan Collins, and Jon Kyl — have tamped down talk of a filibuster (see HERE and HERE).

Sen. Collins:  “At this point, I do not see the extraordinary circumstances that I use as a standard to determine whether to filibuster a nominee.”

Sen. Kyl:  “The filibuster should be relegated to the extreme circumstances, and I don’t think Elena Kagan represents that.”

Reminder:  Judiciary Committee confirmation hearings begin next Monday, June 28.

4

BRIGHT IDEAS: Political Scientists Chris W. Bonneau and Melinda Gann Hall on the Judicial Elections Controversy

As I noted in a post on Monday, controversy continues to surround the use of judicial elections in the selection of judges at the state level. Judicial reform advocates seek to abolish judicial elections in an attempt to preserve judicial independence and judicial impartiality. As I noted in Monday’s post, political scientists Chris W. Bonneau (University of Pittsburgh) and Melinda Gann Hall (Michigan State University) have thrown empirical grenades at these arguments in their new book, In Defense of Judicial Elections, which empirically assesses and debunks many of the reformers’ arguments. Professors Bonneau and Hall, who are experts in the areas of judicial selection, state politics, and judicial politics more generally, were kind enough to answer some of my questions about their book, the judicial elections controversy, and judicial selection in general.

For those who are interested in judicial elections, judicial selection, and law and courts more generally, Bonneau and Hall’s book is a must-read! Before you sign on to the judicial reform movement, you must come to terms with the forceful empirical evidence and arguments put forth by Bonneau and Hall. The interview below is a bit long, but it is definitely worth the read!

1.  Your research focuses on the selection of state supreme court judges, for which there are four different selection systems currently used: partisan judicial elections, nonpartisan judicial elections, merit selection with retention elections (the Missouri Plan), and appointment (akin to the appointment process for federal judges). Could you briefly characterize the controversy surrounding judicial elections versus the other systems?

BONNEAU:  The controversy comes down to whether one thinks voters should have a say in who sits on their courts (partisan and nonpartisan elections) and those who think this power should be vested in the hands of elites (appointment and retention).  From our perspective, we ask, given that states elect judges, do voters know what they are doing when they vote?  Are there institutional mechanisms that can assist voters?

HALL:  The basic claim about partisan and nonpartisan elections is that electioneering and other forms of electoral politics have unacceptably deleterious consequences for the American bench, including diminishing the public trust and deterring the most qualified candidates from seeking office. Reform advocates also describe voters as disinterested and uninformed, and incumbents as at the mercy of special interests and other financial high-rollers when seeking reelection.

From our perspective, these assertions are testable hypotheses that have proven to be unsubstantiated or incorrect.

2.  Your research is empirical—you analyze data from state supreme court elections to test claims put forth by judicial reform advocates (i.e., opponents to judicial elections). Judicial reform advocates have typically relied on normative arguments related to judicial independence and the need for judicial impartiality. Are these (and other) arguments grounded in reality?

BONNEAU: Based on all the evidence to date, the answer is no.  It is not only our work that highlights this, but also that of people like Jim Gibson and Eric Posner and his colleagues.  So, for example, one of the claims made by reformers is that voters don’t know what they are doing.  We find that, other thing being equal, voters are able to distinguish between challengers with prior judicial experience (“quality” challengers) and those who have no such experience.  That is, challengers to incumbents who have prior experience perform better, on average, than those that do not.  Another example:  reformers argue that nobody participates in these elections.  We find that voter participation is quite high, given a competitive election.  When voters are given a meaningful choice, they participate.  One final example:  reformers argue that these elections are exacting a toll on the legitimacy of the court system.  In a series of studies, Jim Gibson has shown that is just not true.

HALL:  This is an excellent question that goes directly to the disjuncture between political scientists and other scholars and practitioners concerned with judicial reform. The reform community, based almost entirely in the legal community, readily accepts normative accounts of judging as entirely apolitical and also assumes that any lifting of the purple curtain will attenuate judicial legitimacy. Similarly, the reform community casts the selection process simply as choosing competent technicians and has the tendency to rely on a normative ideal when evaluating the success or failure of judicial elections.

These normative assumptions are contradicted by modern social science. In fact, judges often have significant discretion and rely on their own political preferences to make decisions. Also, voters have participated in partisan judicial elections for decades without any observable adverse consequences and consistently have shown an unwillingness to relinquish their power over the selection process to political elites. Finally, an apolitical selection process is fiction, just as judges are not mere technocrats. In fact, regardless of who chooses judges, these actors seek to forward their own agendas by placing like-minded people on the bench. The federal judicial appointment process illustrates this point well. Finally, when compared to a normative ideal, all American elections fail. State supreme court elections perform as well or better than elections to other major offices in the United States.

Read More